The U.S. Supreme Court released a new ethics code on Monday, Nov. 13, 2023 but Sen. Dick Durbin, chair of the Senate Judiciary Committee, said the new rules “fall short of what we could and should expect when a Supreme Court issues a code of conduct.” (Al Drago/Getty Images)
The U.S. Supreme Court rejected North Carolina Republican legislators’ argument that the state courts cannot review laws legislatures pass governing federal elections.
Republican legislators claimed the Elections Clause in the U.S. Constitution makes legislatures the sole state authorities on federal elections law,? including congressional redistricting.
Critics said the high court’s endorsement of the independent state legislature theory would cause chaos with state elections, with states trying to enforce a set of rules for state elections and another set for federal elections. The case drew national attention because of its potential to disrupt election laws around the country.
In a 6-3 opinion, the nation’s high court rejected Republicans’ argument, known as the independent state legislature theory.
Justice Brett Kavanaugh wrote a concurring opinion. Justices Clarence Thomas, Neil Gorsuch and Sam Alito dissented. Thomas wrote that the case was moot because the NC Supreme Court has already decided the question that brought Republican legislators to the US Supreme Court.
“We are asked to decide whether the Elections Clause carves out an exception to this basic principle,” said the majority opinion by Chief Justice John Roberts.? “We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”
Democrats from former President Barack Obama to Democratic leaders in the North Carolina legislature weighed in with statements supporting the decision.
“Today, the Supreme Court rejected the fringe independent state legislature theory that threatened to upend our democracy and dismantle our system of checks and balances,” Obama said on Twitter.
The opinion affirms the February 2022 decision by the Democratic majority on the NC Supreme Court that congressional districts the Republican majority created were extreme party gerrymanders that required revision.
“The Supreme Court rejected the independent state legislature theory with vigor,” said Neal Katyal, the attorney who represented the non-government defendants in court. “The court adopted the arguments made by my client, Common Cause, in every material respect.”? Katyal answered reporters’ questions at an online news conference Tuesday afternoon.
“I think it’s incredibly important that legislatures have the traditional check and balance that our Founders put on them, which means subject to state courts, subject to state constitutions. State legislatures, after all,? are creations of the state constitutions. The idea that they can act independently of them is really far-fetched and would do grave damage to our constitutional structure.”
Common Cause, the NC League of Conservation Voters, and a group of voters supported by the National Redistricting Foundation were defendants in the case. They sued Republican legislators in state court over gerrymandered districts, which ultimately led to the Republicans’ appeal to the US Supreme Court.
“We beat back the most serious legal threat our democracy has ever faced with today’s ruling in Moore v. Harper,” said Kathay Feng, vice president for programs at Common Cause. “Today’s ruling is a major victory for our rights as Americans to have a government that values every person’s voice and vote.”
In a statement, House Speaker Tim Moore said he was proud of the work he did to bring the case to the nation’s highest court.
Despite today’s opinion, North Carolina Republicans can redraw election districts without concern that state courts will consider claims of partisan gerrymandering.
Before the US Supreme Court could rule, North Carolina Republican legislators petitioned for and received the chance to reargue a redistricting decision the state Supreme Court issued in December that said the Senate districts used for the 2022 elections were unconstitutional.
The court majority in April overturned partisan gerrymandering opinions handed down last year by a Democratic court majority. The Republican-majority opinion said redistricting is the legislature’s job and the courts cannot not judge partisanship.
“Fortunately, the current Supreme Court of North Carolina has rectified bad precedent from the previous majority, affirming the state constitutional authority of the NC General Assembly,” Moore said in his statement.
Roberts wrote that courts “may not transgress the ordinary bounds of judicial review,” but did not say whether the NC Supreme Court had overstepped.
“We decline to address whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause,” the opinion said. “The legislative defendants did not meaningfully present the issue in their petition for certiorari or in their briefing, nor did they press the matter at oral argument.”
When pressed during December’s oral arguments whether the state’s Democratic justices has misinterpreted the state constitution, the Republicans’ lawyer “reiterated that such an argument was ‘not our position in this Court.’”
Lawyers on both sides of the case tried to use the historical record dating back to the founding of the country to bolster their arguments.
Roberts’ opinion said that history supports judicial review.
“State cases, debates at the Convention, and writings defending the Constitution all advanced the concept of judicial review. And in the years immediately following ratification, courts grew assured of their power to void laws incompatible with constitutional provisions,” he wrote.
During oral arguments last year,? Thomas, Alito, and? Gorsuch indicated they supported the Republican legislators’ argument, while Justices Ketanji Brown Jackson, Sonia Sotomayor, Elena Kagan challenged their logic and interpretation of history.
The NC League 0f Conservation Voters, one of the parties fighting partisan redistricting and the independent state legislature theory, praised the US Supreme Court decision, but called the state Supreme Court decision “blatantly partisan.”
The US Supreme Court twice asked case participants this year if the state Supreme Court rehearing the gerrymandering case and later, siding with Republican legislators made the federal case moot.
The lawyer representing Republican legislators said the Supreme Court should decide the federal case even though North Carolina’s highest court had given them a victory.
Republicans found agreement from Common Cause, which sued over the redistricting plans and opposed Republicans’ position on the independent state legislature theory. Common Cause wants the U.S. Supreme Court to decide the question because it will keep coming up, its May letter said.
Most of the parties who opposed state Republicans’ position, including the US Solicitor General, told the court the case was moot.
Attorneys for a group of voters who sued over the Republican redistricting plans said in a? recent letter to the Court that since the state Supreme Court had ruled in Republicans’ favor, Republicans no longer had standing and there is nothing more that they could win. Likewise, a lawyer for the NC League of Conservation Voters wrote the case is moot.
Katyal chided lawyers who were Common Cause’s side in court who went on to tell the Court this year that the case was moot.
]]>Protestors outside the U.S. Supreme Court as oral arguments were heard in a pivotal North Carolina case dealing with election law on Wednesday. (Photo by Kira Lerner for States Newsroom)
WASHINGTON — North Carolina Republicans appeared to have at least three of the U.S. Supreme Court’s conservative justices on their side Wednesday in a case that could determine the future of elections nationwide, and leave decisions about federal elections in the hands of state legislatures and beyond the reach of state courts.
The Supreme Court heard oral arguments in an appeal of a North Carolina Supreme Court ruling that threw out congressional districts drawn by the Republican-led legislature. The state’s high court decided in February that the redistricting plans constituted a partisan gerrymander that violated the state constitution.
North Carolina Republicans base their case on something called the “independent state legislature theory,” which holds that the U.S. Constitution’s Elections Clause makes legislatures the sole authority over federal elections.
“It is federal law alone that places substantive restrictions on state legislatures performing the task assigned them by the federal constitution,” said David H. Thompson, the lawyer representing the GOP legislators, during Wednesday’s arguments.
Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito seemed to agree with Thompson, indicating their belief that the federal Constitution is enough to protect voters and state constitutions shouldn’t play a role in election matters.
The oral arguments lasted almost three hours, twice as long as the court had scheduled, with multiple justices seeking clarifications on how Supreme Court precedent impacts this case and how the Elections Clause of the U.S. Constitution should be interpreted.
Three attorneys — former Acting Solicitor General Neal Katyal, former Solicitor General Donald Verrilli, and current Solicitor General Elizabeth Prelogar — argued on behalf of the respondent voters, voting rights groups, and the U.S. Department of Justice, who oppose the North Carolina Republicans’ theory.
The opponents, who brought the original gerrymandering lawsuits, say the North Carolina Republicans’ argument relies on a misinterpretation of the Constitution that ignores historical fact.
The court’s three liberal justices seemed to agree with the opponents. An endorsement of the North Carolina Republicans’ position would have far-reaching effects, said Justice Elena Kagan.
“This is a theory with big consequences,” she said. “It would say that if the legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that’s a violation of the Constitution. It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state Constitution in fact prohibits. It might allow the legislatures to insert themselves, to give themselves a role in the certification of elections and the way election results are calculated.”
She added that the North Carolina Republicans’ proposal “gets rid of the normal checks and balances on the way big governmental decisions are made in this country.”
Katyal, who represented the parties who originally sued over the redistricting plans, warned of the “blast radius” of a ruling in favor of North Carolina GOP legislators in which state lawmaking is unconstrained by a state constitution.
Outside the court on Wednesday, Katyal said that “the checks and balances laced into the Constitution forbid what these challengers are seeking.”
Allison Riggs, co-executive director of the Southern Coalition for Social Justice, told reporters outside the court that the North Carolina legislators’ position during the oral arguments was extreme compared to what they argued in their earlier briefings.
“What I take away from today’s argument is that legislative leadership in North Carolina still wants the North Carolina constitution to be a meaningless piece of paper,” she said.
Opponents of the independent state legislature theory have also gained support from conservative lawyers who disagree with it.
“I do not believe there is any support whatsoever in the constitutional text or in the history of the framing of the Constitution that would support the most aggressive version of the independent state legislature theory that the petitioners are arguing for,” J. Michael Luttig, a Reagan administration lawyer and former U.S. Appeals Court judge, said in a webinar Tuesday. Luttig is working with Common Cause, the League of Conservation Voters, and a group of voters backed by the National Redistricting Foundation to oppose the North Carolina Republicans’ arguments.
Though the immediate case at issue before the Supreme Court is about redistricting, North Carolina Republicans have clashed with Democratic Gov. Roy Cooper, Democratic Attorney General Josh Stein and the state Board of Elections over other issues that could be implicated by the court’s ruling, such as the deadline for accepting mail-in ballots.
A ruling for North Carolina Republicans would create a confusing, two-tiered election system, with different rules for federal and state elections, national associations representing cities, counties, and mayors argued in a friend of the court brief.
Other recent rulings, including a 2019 Supreme Court case from North Carolina, Rucho v. Common Cause, seemed to indicate acceptance of the notion that entities other than legislatures have a lawful role in creating election districts. In Rucho, the majority said it would not consider cases about partisan gerrymandering, calling those political questions “beyond the reach of the federal courts.” But the majority opinion, written by Chief Justice John Roberts, also noted that state laws, state constitutions, and independent commissions could offer remedies to partisan gerrymandering.
In his live blog of the oral arguments, voting rights expert Rick Hasen, a law professor at the University of California, Los Angeles, said the divided Supreme Court appears to be “searching for a middle ground to hold that in really egregious cases state courts can violate the federal constitution when they apply state constitutions (or potentially to interpret state statutes) to limit a state legislature in regulating federal elections.”
Specifically, he said that the three justices who appear to be undecided on this case — Chief Justice Roberts and Justices Amy Coney Barrett and Brett Kavanaugh –— seem to be looking for a middle ground.
He said he doesn’t believe the court is ready to rule in line with the North Carolina Republicans’ view on the independent state legislative theory, but a partial ruling would still be problematic in allowing the federal government to inject itself into state election disputes.
Voting rights advocates and opponents of the independent state legislature theory remain fearful of what a ruling for North Carolina’s legislators, or even a partial one, could mean for the future of elections.
During a voting rights conference on Tuesday, Republican election lawyer Ben Ginsberg said that a ruling for North Carolina Republicans would “not be good for certainty in elections at a time when the system is under assault.”
]]>